“Vesting”: Text, Context, Dictionaries, and Unitary Problems

My new paper up on SSRN here. [Update: the Stanford Law Review will be publishing my article in March 2022.]

“Vesting”: Text, Context, Dictionaries, and Unitary Problems

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3793213

Abstract:

“The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, that as a strict separation of powers, the president possesses executive powers like removal, exclusive from congressional limitations (i.e., they are indefeasible).

However, unitary judges and scholars have not provided historical evidence that “vest” had such an original public meaning. This Article offers a close textual reading of the word “vesting” and an examination of its context, with the first survey of the available dictionaries from the era and the word’s usage in early colonial charters and American constitutions, the Convention, and ratification debates. The bottom line is that, in this era, the word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. At best, the meaning of “vested” was unclear, and more likely, its ordinary meaning was a simple grant of powers without signifying the impermissibility of legislative checks and balances.

Modern assumptions about “vesting” for official powers are likely semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine of “vested rights.” They also reflect flawed assumptions about English royal removal powers, Blackstone, and the context of early American administration.

In the first survey of the word “vest” in fifty of the era’s available dictionaries from 1640 to 1846 (33 before 1787, 18 after 1787), this Article finds that they generally defined “vest” in terms of individual property rights (usually landed property) without any reference to official powers. Some legal dictionaries referred in Latin to full possession of land or estates, but this evidence is less relevant to ordinary public meaning and to offices. Few had any definitions related to offices and powers, and none referred to exclusive or indefeasible powers.

Other early constitutions (especially the Articles of Confederation), the Convention and Ratification debates, and related documents similarly reflect a limited meaning. The word “vesting” first appeared in the Convention in the Virginia Plan, in a context of relatively weak anti-unitary executive power. A method of “intratextualism” and the canon of expressio unius offer clues about the meaning of “vest” when used in constitutional contexts. Other clauses often used other words to convey exclusivity and completeness: “all,” “exclusive,” “sole,” and “alone.” However, those words are missing from the Executive Vesting Clause.

This research has implications for Article I and Article III “vesting” (both for and against claims about formal non-delegation and jurisdictional exclusivity). If the Executive Vesting Clause does not convey exclusivity (and given the weaknesses of relying on “take Care,” “faithful execution,” or the Decision of 1789), it is unclear what remains of an originalist argument for Free Enterprise, Seila Law, and indefeasible removal powers.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: